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decided: May 25, 1984.


NOS. 56 AND 57 WESTERN DISTRICT APPEAL DOCKET, 1983, Appeal from Opinion and Order of the Pennsylvania Superior Court at No. 437 Pittsburgh, 1981, Vacating the Decision of the Court of Common Pleas of Washington County, Pennsylvania, at Nos. 157 and 158 of 1981, Pa. Superior Ct. , Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, J., concurs in the result.

Author: Hutchinson

[ 505 Pa. Page 116]


These are appellants' consolidated appeals by allowance from an order of Superior Court, 312 Pa. Super. 1, 458 A.2d 204, reversing a Common Pleas order suppressing evidence seized by the State Police in a search of appellant's

[ 505 Pa. Page 117]

    home.*fn1 Appellants argue that the Suppression Court correctly suppressed the fruits of a search of appellants' premises because the District Justice failed to issue a search warrant. The Commonwealth contends the District Justice clearly intended to issue a warrant when he took the policeman's oath to the affidavit of probable cause and his failure to sign the order issuing the warrant is a technicality which can be ignored. We hold that both our Pennsylvania Constitution and the federal Constitution require an order by the District Justice, as a judicial officer, and that his jurat on a policeman's affidavit of probable cause is no substitute for the judicial decision our Constitution requires for issuance of a search warrant. In the absence of an order by an independent judicial officer no search warrant could issue. Thus, the State Police's search in this case must be analyzed as one without warrant. As such, it can stand only if exigent circumstances are present. They are not. Indeed, there is not even an effort to show them. Under these circumstances, Common Pleas correctly suppressed the fruits of the search under the federally mandated exclusionary rule. Therefore, we reverse the order of Superior Court and reinstate the order of Common Pleas.

[I]n reviewing a suppression court's ruling the appellate court is bound by factual findings supported by the record. Commonwealth v. Wiggins, 472 Pa. 95, 371 A.2d 207 (1977); and, they may not substitute their own findings for those of the suppression court. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980). This principle of deference to trial courts has one important caveat however, appellate courts are not bound by findings wholly lacking in evidence. Commonwealth v. Hall, 475 Pa. 482, 380 A.2d 1238 (1977).

[ 505 Pa. Page 118]

    v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). We agree with that conclusion. The policeman's affidavit did contain facts which would have supported an independent finding of probable cause and the issuance of a warrant under either the strict Aquilar-Spinelli standard or the more practical standard recently articulated by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), had the District Justice chosen to reach that conclusion. Indeed, appellant does not seriously dispute the Suppression Court's finding on that point. However, this record does not show the District Justice ever reached that conclusion. On the contrary, it shows he never entered an order issuing a warrant.

Beneath the District Justice's signature verifying the affidavit, printed in red bold-face block type are the words "ORIGINAL APPLICATION." By what may be an unfortunate format, the warrant itself is found on the reverse side of the "ORIGINAL APPLICATION" without identification in distinctive type. The printed form for the warrant is divided into two separate warrants, one for day searches and one for night searches. These forms were in substantially the form set forth by Pa.R.Crim.P. 2006. The form of warrant presented to District Justice Tempest is reproduced below:

TO LAW ENFORCE- WHEREAS, facts have been sworn to or af-

MENT OFFICER: firmed before me by written affidavit(s) at-

     tached hereto from which I have found probable

     cause, I do authorize you to search the premises

     or person (described on the reverse side), and to

     seize, secure, inventory, and make return ac-

     cording to the Pennsylvania Rules of Criminal

Procedure, the items described on the reverse


[] This Warrant should be served as*fn** [] ...

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